Laws we no longer need

The arrest of cartoonist Aseem Trivedi has served to focus attention on the issue of holding a modernizing democracy hostage to colonial laws.

A Hoot editorial

The arrest of cartoonist Aseem Trivedi has served to focus attention on the issue of holding a modernising democracy hostage to colonial laws. There are those who argue that free speech includes the right to offend, but there are others whose right to be offended is narrowing the space for creative expression. That includes the government of the day.

While Article 19(1)(a) and its restrictions are being tested every day, there is a need to also re-examine the validity of some other laws that continue to be applied even as technology has expanded the domain of free expression. For governments and law-enforcing authorities, these laws are useful to curb a range of dissenting expression and but retaining these laws on our statute books makes a mockery of democratic principles.

Incidentally, the UK, from where we inherited this law, dropped sedition from their statue books in 2010. Australia, followed suit, repealing sedition in 2011.

The cartoonist was charged under Sec 124 A (Sedition) of the Indian Penal Code (IPC), Sec 2 of the Prevention of Insult to National Honour Act, 1971 and Sec 66A of the Information Technology (IT) Act, 2000. All three have a minimum term of three years and a fine but the serious charge of sedition carries a maximum sentence of life imprisonment.

Trivedi was released on bail after an order by the Mumbai High Court, on a writ petition filed by an advocate challenging his arrest. But whether sedition should have been applied in his case, is highly debatable. The furore that followed his arrest, nationally and internationally, has forced an embarrassed Maharashtra government to appoint another investigating officer in his case and there are rumours that the charge of sedition will be dropped.

The website of the Kanpur-based artist’s cartoons against corruption was blocked in December 2011, following a complaint by Mumbai police.Trivedi, who moved his cartoons to a blog, also began a campaign against the IT Act called ‘Saveyourvoice’. But it was the exhibition of his cartoons at a meeting of the group, India Against Corruption (IAC), in Mumbai in December 2011, was the immediate provocation for the complaint.

All the three charges leveled against Aseem’s cartoons raise interesting questions. The first is the charge of sedition, hopelessly over-invoked in recent times against civil society activists like PiyushSethia of Salem for distributing pamphlets on Operation Green Hunt, senior PUCL member and scientist E Rati Rao of Mysore for publishing a defunct journal, writer Arundhati Roy for her utterances on Kashmir and lately, thousands of villagers opposing the nuclear power plant in Kudankulam.

Sec 124A of the IPC punishes anyone with upto life imprisonment, who ‘by words, either spoken or written, or by signs, or by visible representation, or otherwise, brings or attempts to bring into hatred or contempt, or excites or attempts to excite disaffection towards. 2[* * *] the Government established by law in 3[India]’.

The second is the charge under Sec 66A of the IT Act that penalizes the sending of ‘offensive’ messages through electronic communication. It is curious that this section of the draconian Act was invoked and it remains to be seen if the publishing of a blog or postings on Facebook will constitute ‘transmission’. Was the transmission of the allegedly offensive material by email? Does that mean the cartoonist’s emails were monitored and intercepted, both perfectly legal under the IT Act?

The third is the charge of insulting national honour which explicitly lays down penal provisions for anyone who ‘burns, mutilates, defaces, defiles, disfigures, destroys, tramples upon or otherwise shows disrespect to or brings into contempt (whether by words, either spoken or written, or by acts) the Indian National Flag or the Constitution of India or any part thereof’.

Of all the cartoons drawn by Aseem Trivedi, the ones that appear to have caused most angst are those that depict a woman draped in a saree in the colours of the national flag as ‘mother India’ who is about to be gang-raped by the monster of corruption, aided by politicians and bureaucrats, the lions of an Ashoka Pillar emblem who are blood-thirsty wolves, the houses of Parliament that seem like a sewage system and another of the jailed terrorist Ajmal Kasab, peeing over a copy of the Constitution.

The cartoons are blunt, almost crude depictions, in Hindi and English. Their style is distinctly provocative. But do they spread disaffection for the state or provoke hatred or contempt against the State? Are they ‘offensive’ messages that cannot be ‘transmitted’ electonically? Do they ‘insult national honour’?

Public opinion is divided on the last two, despite the fact that, clearly, applying sedition to the cartoonist is seen as a patently absurd and excessive charge.

In March last year, the Union Law Minister Veerappa Moily said that this law, enacted in 1971, should be amended to bring Mahatma Gandhi in its ambit as any attempt to show disrespect to Gandhi was anti-national! (Of course, that’s neither here nor there, for Moily also said that sedition had no place in a free country during the agitation to release Dr Binayak Sen, arrested for sedition by the Chhattisgarh police!)

But following, as this incident does, on the unexplained blocking in recent weeks of more than 300 urls, websites and Twitter handles in response to the panic migration of people from the North East, what we need to focus on is the laws themselves, and the way they are applied.

Instead of merely hollering periodically about internet censorship and protesting sedition, is it not time to mount a legal challenge to laws like the one on sedition, the Indian Telegraph Act of 1885 and Wireless Telegraphy Act of 1933 which give the government control over radio, and the more archaic provisions of the Emblems and Names (Prevention of Improper Use) Act, 1950? And at the same time campaign for transparency in the implementation of other laws like the sections of the IT Act which empower the government to intercept and monitor electronic communication and block sites and social network media?

The new term for self censorship is voluntary censorship, as proposed by companies like Netflix and Hotstar. ET reports that streaming video service Amazon Prime is opposing a move by its peers to adopt a voluntary censorship code in anticipation of the Indian government coming up with its own rules. Amazon is resisting because it fears that it may alienate paying subscribers.

Clearly, the run to the 2019 elections is on. A journalist received a call from someone saying they were from Aajtak channel and were conducting a survey, asking whom she was going to vote for in 2019. On being told that her vote was secret, the caller assumed she wasn't going to vote for 'Modiji'. The caller, a woman, also didn't identify herself. A month or two earlier the same journalist received a call, this time from a man, asking if she was going to vote for the BSP.